maintain that none of them, save CRC, is an employer who may
be liable under either the ADEA or the HRL. Therefore,
defendants argue, Count 1 of the complaint should be dismissed
as to all of the defendants except CRC for failure to state a
claim upon which relief may be granted, pursuant to
Only an "employer," "employment agency," or "labor
organization" may be liable under the ADEA. 29 U.S.C. § 623(a)(c).
The ADEA defines "employer" as "a person engaged in
an industry affecting commerce who has twenty or more employees
. . ." 29 U.S.C. § 630(b). The term also means "any agent of
such a person. . . ." 29 U.S.C. § 630(b)(1). Thus, an employer
or an agent of an employer may be held liable under the ADEA
for age discrimination.
There are few cases on the standards for determining whether
a defendant is an "employer" within the meaning of the ADEA,
so the court relies as well on Title VII and Fair Labor
Standards Act ("FLSA") caselaw. The Second Circuit has
approved the application of Title VII principles to ADEA cases
since "'the substantive prohibitions of the ADEA were derived
in haec verba from Title VII.'" Lowe v. Commack UFSD,
886 F.2d 1364 (1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1470, 108
L.Ed.2d 608 (1990) (quoting Lorillard v. Pons, 434 U.S. 575,
584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978)). In addition, the
ADEA explicitly incorporates the remedies and procedures of the
FLSA. 29 U.S.C. § 626(b); House v. Cannon Mills Co.,
713 F. Supp. 159, 160 (M.D.N.C. 1988).
Prefatorily, the term "employer" is to be liberally
interpreted. Bostick v. Rappleyea, 629 F. Supp. 1328, 1334
(N.D.N.Y. 1985) (citing Rivas v. State Bd. for Community
Colleges and Occupational Educ., 517 F. Supp. 467, 470 (D.Colo.
1981)). The term "'has been construed in a functional sense to
encompass persons who are not employers in conventional terms,
but who nevertheless control some aspect of an individual's
compensation, terms, conditions, or privileges of employment.'"
Bostick, 629 F. Supp. at 1334 (quoting Spirt v. Teachers Ins.
and Annuity Assoc., 475 F. Supp. 1298, 1308 (S.D.N.Y. 1979),
aff'd in part and rev'd in part on other grounds, 691 F.2d 1054
(2d Cir. 1982), cert. denied sub nom. Teachers Ins. and Annuity
Assoc. v. Spirt, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185
(1984)). A person is an agent of an employer "'if he
participated in the decision making process that forms the
basis of the discrimination.'" Bostick, 629 F. Supp. at 1334
(quoting Jones v. Metropolitan Denver Sewage Disposal Dist. No.
1, 537 F. Supp. 966, 970 (D.Colo. 1982)).
The definition of an "employer" under the HRL, found in
N YExec.Law § 296(5), relates only to the number of persons
employed "and provides no clue to whether individual employees
of a corporate employer may be sued under its provisions."
Patrowich v. Chemical Bank, 63 N.Y.2d 541, 543, 483 N.Y.S.2d
659, 660, 473 N.E.2d 11, 12 (1984). The Court of Appeals held
in Patrowich, however, that a corporate employee, even though
he may be an officer and supervisor of a corporate division,
"is not individually subject to suit under New York's Human
Rights Law . . . if he is not shown to have any ownership
interest or any power to do more than carry out personnel
decisions made by others." Id. at 542, 483 N.Y.S.2d at 660, 473
N.E.2d at 12.
In the instant case, the plaintiff alleges that on October
30, 1986, defendant Cook met with defendant Metcalf in Cook's
office, and that the two discussed plaintiff's termination.
Complaint, para. 45. Plaintiff alleges in the same paragraph
that Cook spoke on the telephone on October 15 and October 17,
1986 with defendants Beplat, Chapman and Metcalf and suggested
that he assume all of the plaintiff's legal and secretarial
duties. Plaintiff further alleges that all of the CRC
directors conducted an "informal, unrecorded" meeting on the
morning of October 30, 1986, at which defendant Cook proposed
that he assume all of the plaintiff's functions as counsel and
secretary. Complaint, para. 46. Plaintiff
avers that on October 31, 1986, defendants Metcalf and Ludt
informed him that the board of directors decided at the
"informal" meeting conducted the previous day to terminate him
from his employment effective June 30, 1987. Complaint, para.
48. Plaintiff further alleges that, after he sent the March 2,
1987, memorandum to the board of directors requesting
reconsideration of their decision to terminate his employment,
he was invited to a meeting of the board on March 5, 1987, at
which defendants Metcalf, Chapman, Ludt, Beplat, Seidler and
Cook were present. Cook had earlier resigned as a director, a
fact unknown at that time to the plaintiff, but was present in
his role as general counsel and secretary. Complaint, para.
51-52. The board of directors voted to terminate plaintiff
immediately, and following the meeting, plaintiff was handed
a memo drafted by Cook and signed by George Metcalf informing
him that he was terminated and should vacate his office at
once. Complaint, para. 55.
The defendants do not dispute that CRC is a proper party
defendant on the ADEA claims. However, at oral argument,
counsel for the defendants, relying on Spirt and Bostick,
contended that the individual defendants could not be liable
because as officers and/or directors of CRC, they did not have
the necessary control over plaintiff's employment. Defendants'
counsel also implied that the individual defendants should be
shielded from individual liability because of their status as
corporate officers and directors. However, corporate officers
and directors may be individually liable for violations of the
ADEA if they exercise control over an employee. House v. Cannon
Mills Co., 713 F. Supp. 159, 161 (M.D.N.C. 1988). In Shultz v.
Chalk-Fitzgerald Const. Co., 309 F. Supp. 1255 (D.Mass. 1970),
the court held an individual liable as an "employer" under the
FLSA despite the fact that he acted in a representative
capacity as an officer and agent of a corporation. As the court
Congress has in effect provided that for the
purposes of the Act any person who acts directly
or indirectly in the interest of an employer in
relation to an employee shall be subject to the
same liability as the employer. . . . [L]iability
is predicated not on the existence of the
employer-employee relationship between him and
the employee but on the acts he performs in
relation to the employee.
Id. at 1257 (emphasis added); see also Donovan v. Maxim Indus.,
Inc., 552 F. Supp. 1024, 1025 (D.Mass. 1982) (the "corporate
form does not shield from individual liability for violations
of [the FLSA] those officers who act for the corporation in
relation to its employees.")
An application of these same principles to an ADEA case is
consistent with the ADEA's purpose to eliminate age-based
discrimination from the workplace, and with the liberal
construction to be given to the ADEA's remedial provisions.
Cannon Mills, 713 F. Supp. at 162; see also Bostick, 629 F. Supp.
The plaintiff here alleges that all of the individual
defendants took part in the initial decision to terminate him,
or in the language of Bostick, that they "participated in the
decision making process that forms the basis of the
discrimination." Plaintiff thus states a claim under Section
623 of the ADEA as to the individual defendants.
With respect to plaintiff's HRL claims, defendants urge the
court to apply the holding in Patrowich and dismiss the claims.
Defendants argue that they had no ownership interest or power
to do more than carry out personnel decisions made by others.
On the contrary, plaintiff alleges that all of the directors
had the power to and did vote to terminate him. See Lapidus v.
New York City Chapter of New York State Ass'n for Retarded
Children, Inc., 118 A.D.2d 122, 504 N.Y.S.2d 629, 634 (1st
Dept. 1986) (distinguishes Patrowich, noting that defendant in
Lapidus had power to hire and fire, and that plaintiff alleged
defendant had made comments over several years disparaging
Moreover, Section 296(6) of the HRL states that it shall be
an unlawful discriminatory practice "for any person to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or attempt to do so."
N YExec.Law § 296(6). Even if the defendants were not
corporate agents of CRC, plaintiff's allegations support the
conclusion that defendants aided or abetted the acts which
plaintiff claims violated the HRL. Thus, defendants' motion to
dismiss plaintiff's HRL claim on this ground is denied.
Plaintiff does not allege, however, that defendant Warren
Metcalf took part in the decision to terminate plaintiff
immediately on March 5, 1987, and thus the retaliation claim
against Warren Metcalf in Count 2 must be dismissed. Further,
Hancock and Estabrook does not fall within the definition of
an agent or employer under either the ADEA or the HRL, and
Counts 1 and 2 of the complaint are therefore dismissed as to
Hancock and Estabrook.
C. Breach of Employment Contract
Plaintiff alleges in Count 3 of the complaint that the
defendants breached an enforceable oral agreement with CRC to
employ plaintiff for the duration of his career, terminable
only for just cause. Plaintiff claims that the defendants
breached that contract by voting to terminate him without just
cause. The defendants argue that the alleged contract is
unenforceable because it is within the New York Statute of
Frauds, which states, in pertinent part:
Every agreement, promise or undertaking is
void, unless it or some note or memorandum
thereof be in writing, and subscribed by the
party to be charged therewith, or by his lawful
agent, if such agreement, promise or undertaking
. . . [b]y its terms is not to be performed
within one year from the making thereof or the
performance of which is not to be completed
before the end of a lifetime. . . .
N YGen.Oblig.Law § 5-701(a)(1).
The guiding principles applicable to this section
as it pertains to employment contracts were given
their most thorough recent treatment by the New
York Court of Appeals in D & N Boening, Inc. v. Kirsch
Beverages, Inc., 63 N.Y.2d 449, 483 N.Y.S.2d 164,
472 N.E.2d 992 (1984), in which the court noted the traditionally narrow
interpretation of the one-year provision of the Statute of
Frauds by the New York courts to bar the enforcement of oral
employment agreements "only which by their very terms have
absolutely no possibility in fact and law of full performance
within one year." Id. at 454, 483 N.Y.S.2d at 165, 472 N.E.2d
at 993. In other words, the court must analyze the oral
agreement to determine if:
according to the parties' terms, there might be
any possible means of performance within one
year. Wherever an agreement has been found to be
susceptible of fulfillment within that time, in
whatever manner and however impractical, this
court has held the one-year provision of the
Statute to be inapplicable, a writing
unnecessary, and the agreement not barred.
Id. at 455, 483 N.Y.S.2d at 166, 472 N.E.2d at 994.